2014 05 Health Care

R (on the application of Elizabeth Rose) v Thanet Clinical Commissioning Group [2014] EWHC 1182 (Admin) (Jay J): The court held that in refusing a 25-year-old woman funding for her requested oocyte cryopreservation treatment before she underwent gonadotoxic therapy, a clinical commissioning group had correctly applied the existing, lawful policy in relation to provision of assisted reproductive techniques. The group's new policy on the provision of assisted reproductive techniques was, however, unlawful since it demonstrated an impermissible departure from NICE guidelines on the basis of its disagreement with NICE's medical or scientific rationale. The Claimant was a 25-year-old woman, suffered from severe Crohn's disease. Her doctors had recommended that she undergo bone marrow transplantation and chemotherapy to bring the disease into remission. The probable outcome of that gonadotoxic therapy was that she would be rendered infertile and suffer early onset of the menopause. The Claimant wished to secure the best chance of having her own genetic children, and therefore sought NHS funding for oocyte cryopreservation before the chemotherapy began. She was in receipt of benefits and in no position to afford the cost of that assisted reproductive technique (ART) herself. The Court held that in essence, the Claimant's case was that the triage group should have had regard to the NICE recommendations when making its decisions. That contention was wrong. The triage group's role was solely to determine the issue of clinical exceptionality; its function was not to question or second-guess a CCG's general policy. It had been aware of NICE Guideline 156 when making its decision: if an issue had arisen in connection with any particular triage decision, it could be drawn to the attention of those developing Thanet's new policy. The bottom line was that the triage group did not have power to determine the exceptionality question with reference to NICE guidelines. When funding had been refused, Thanet's new policy based on its view of the effectiveness of oocyte preservation had not been implemented, and the Claimant had not sought to impugn Thanet's existing policy. That policy had been lawfully applied to the Claimants funding application. Further NICE was a national body and its guidelines were intended to have nationwide application. NICE recommendations were based on an evaluation of the evidence, health benefit and cost, and nothing else. Although NICE guidelines did not have to be followed, a CCG was under a public law obligation to have regard to the relevant NICE guideline and to provide clear reasons for any general policy that did not follow it. Thanet's sole basis for not following the NICE guidelines was that it disagreed with its evidence on the effectiveness of oocyte cryostorage. CCGs might not legitimately disagree with NICE on matters concerning the current state of medical science. Thanet could not lawfully disagree with the medical or scientific rationale for NICE's recommendation in relation to oocyte cryopreservation. It could have found other reasons for not following the NICE recommendation, but not that one. Since no basis or reasoning on grounds of exceptionality had been put forward, it followed that Thanet's new ART policy was unlawful. Save for any application for declaratory relief that the Claimant might make on the basis of that finding, her claim for judicial review was dismissed. (Click here for the judgment)